2015 California Rules of Court

Rule 5.725. Selection of permanent plan (§§ 366.26, 727.31)

(a) Application of rule

This rule applies to children who have been declared dependents or wards of the juvenile court.

(1)Only section 366.26 and division 12, part 3, chapter 5 (commencing with section 7660) of the Family Code or Family Code sections 8604, 8605, 8606, and 8700 apply for the termination of parental rights. Part 4 (commencing with section 7800) of division 12 of the Family Code does not apply.

(2)The court may not terminate the rights of only one parent under section 366.26 unless that parent is the only surviving parent; or unless the rights of the other parent have been terminated under division 12, part 3, chapter 5 (commencing with section 7660), or division 12, part 4 (commencing with section 7800) of the Family Code, or Family Code sections 8604, 8605, or 8606; or unless the other parent has relinquished custody of the child to the welfare department.

(3)Only section 366.26 applies for establishing legal guardianship.

(4)For termination of the parental rights of an Indian child, the procedures in this rule and in rule 5.485 must be followed.

In addition to the requirements stated in section 294, notice must be given to any CASA volunteer, the child's present caregiver, and any de facto parent on Notice of Hearing on Selection of a Permanent Plan (form JV-300).

Before the hearing, petitioner must prepare an assessment under section 366.21(i). At least 10 calendar days before the hearing, the petitioner must file the assessment, provide copies to each parent or guardian and all counsel of record, and provide a summary of the recommendations to the present custodians of the child, to any CASA volunteer, and to the tribe of an Indian child.

At the hearing, the court must state on the record that the court has read and considered the report of petitioner, the report of any CASA volunteer, the case plan submitted for this hearing, any report submitted by the child's caregiver under section 366.21(d), and any other evidence, and must proceed as follows:

(1)In the case of an Indian child, after the agency has consulted with the tribe, when the court has determined with the concurrence of the tribe that tribal customary adoption is the appropriate permanent plan for the child, order a tribal customary adoption in accordance with section 366.24; or

(2)Order parental rights terminated and the child placed for adoption if the court determines, by clear and convincing evidence, that it is likely the child will be adopted, unless:

(A)At each and every hearing at which the court was required to consider reasonable efforts or services, the court has found that reasonable efforts were not made or that reasonable services were not offered or provided; or

(B)The child is living with a relative who is unable or unwilling to adopt the child because of circumstances that do not include an unwillingness to accept legal or financial responsibility for the child, but who is willing and capable of providing the child with a stable and permanent environment through legal guardianship, and removal from the home of the relative would be detrimental to the emotional well-being of the child. For an Indian child, "relative" includes an "extended family member," as defined in the federal Indian Child Welfare Act (25 U.S.C. §1903(2)); or

(C)The court finds a compelling reason to determine that termination would be detrimental to the child because of the existence of one of the following circumstances:

(i)The parents or guardians have maintained regular visitation and contact with the child and the child would benefit from continuing the relationship;

(ii)A child 12 years of age or older objects to termination of parental rights;

(iii)The child is placed in a residential treatment facility and adoption is unlikely or undesirable while the child remains in that placement, and continuation of parental rights will not prevent the finding of an adoptive home if the parents cannot resume custody when residential care is no longer needed;

(iv)The child is living with a foster parent or Indian custodian who is unable or unwilling to adopt the child because of exceptional circumstances, but who is willing and capable of providing the child with a stable and permanent home, and removal from the home of the foster parent or Indian custodian would be detrimental to the emotional well-being of the child. This exception does not apply to (1) a child under 6 or (2) a child who has a sibling under 6 who is also a dependent and with whom the child should be placed permanently; or

(v)There would be a substantial interference with the child's relationship with a sibling, taking into consideration the nature and extent of the relationship. To make this determination, the court may consider whether the child was raised in the same home as the sibling, whether the child and the sibling shared common experiences or have close and strong bonds, and whether ongoing contact with the sibling is in the child's best interest. For purposes of this subdivision, determination of the child's best interest may include a comparison of the child's long-term emotional interest with the benefit of legal permanence in an adoptive home.

(vi)The child is an Indian child and termination of parental rights would substantially interfere with the child's connection to his or her tribal community or the child's tribal membership rights, or the child's tribe has identified guardianship, long-term foster care with a fit and willing relative, tribal customary adoption, or another planned permanent living arrangement as the appropriate permanent plan for the child.

(3)The court must not fail to find that the child is likely to be adopted based on the fact that the child is not yet placed in a preadoptive home or with a relative or foster family willing to adopt the child.

(4)The party claiming that termination of parental rights would be detrimental to the child has the burden of proving the detriment.

(5)If the court finds termination of parental rights to be detrimental to the child for reasons stated in (2)(B), the court must state the reasons in writing or on the record.

(6)If termination of parental rights would not be detrimental to the child, but the child is difficult to place for adoption because the child (1) is a member of a sibling group that should stay together; (2) has a diagnosed medical, physical, or mental handicap; or (3) is 7 years of age or older and no prospective adoptive parent is identified or available, the court may, without terminating parental rights, identify adoption as a permanent placement goal and order the public agency responsible for seeking adoptive parents to make efforts to locate an appropriate adoptive family for a period not to exceed 180 days. During the 180-day period, in order to identify potential adoptive parents, the agency responsible for seeking adoptive parents for each child must, to the extent possible, ask each child who is 10 years of age or older and who is placed in out-of-home placement for six months or longer to identify any individuals who are important to the child. The agency may ask any other child to provide that information, as appropriate. After that period the court must hold another hearing and proceed according to (1), (2), or (7).

(7)If the court finds that (2)(A) or (2)(B) applies, the court must appoint the present custodian or other appropriate person to become the child's legal guardian or must order the child to remain in foster care.

(A)If the court orders that the child remain in foster care, it must identify the foster care setting by name and identify a specific permanency goal for the child. The court may order that the name and address of the foster home remain confidential.

(B)Legal guardianship must be given preference over foster care when it is in the interest of the child and a suitable guardian can be found.

(C)A child who is 10 years of age or older who is placed in a out-of-home placement for six months or longer must be asked to identify any adults who are important to him or her in order for the agency to investigate and the court to determine whether any of those adults would be appropriate to serve as legal guardians. Other children may be asked for this information, as age and developmentally appropriate.

(D)If the court finds that removal of the child from the home of a foster parent or relative who is not willing to become a legal guardian for the child would be seriously detrimental to the emotional well-being of the child, then the child must not be removed. The foster parent or relative must be willing to provide, and capable of providing, a stable and permanent home for the child and must have substantial psychological ties with the child.

(E)The court must make an order for visitation with each parent or guardian unless the court finds by a preponderance of the evidence that the visitation would be detrimental to the child.

(8)The court must consider the case plan submitted for this hearing and must find as follows:

(A)The child was actively involved in the development of his or her own case plan and plan for permanent placement as age and developmentally appropriate, including being asked for a statement regarding his or her permanent placement plan, and the case plan contains the social worker's assessment of those stated wishes; or

(B)The child was not actively involved in the development of his or her own case plan and plan for permanent placement, including being asked for a statement regarding his or her permanent placement plan and the case plan does not contain the social worker's assessment of those stated wishes. If the court makes such a finding, the court must order the agency to actively involve the child in the development of his or her own case plan and plan for permanent placement, including asking the child for a statement regarding his or her permanent plan, unless the court finds that the child is unable, unavailable, or unwilling to participate. If the court finds that the case plan does not contain the social worker's assessment of the child's stated wishes, the court must order the agency to submit the assessment to the court; and

(C)In the case of an Indian child, the agency consulted with the child's tribe and the tribe was actively involved in the development of the case plan and plan for permanent placement, including consideration of whether tribal customary adoption is an appropriate permanent plan for the child if reunification is unsuccessful; or

(D)In the case of an Indian child, the agency did not consult with the child's tribe. If the court makes such a finding, the court must order the agency to consult with the tribe, unless the court finds that the tribe is unable, unavailable, or unwilling to participate.

(9)For a child 12 years of age or older and in a permanent placement, the court must consider the case plan and must find as follows:

(A)The child was given the opportunity to review the case plan, sign it, and receive a copy; or

(B)The child was not given the opportunity to review the case plan, sign it, and receive a copy. If the court makes such a finding, the court must order the agency to give the child the opportunity to review the case plan, sign it, and receive a copy.

(10)If no adult is available to become legal guardian, and no suitable foster home is available, the court may order the care, custody, and control of the child transferred to a licensed foster family agency, subject to further orders of the court.

(1)The court may not terminate parental rights or order adoption if a review of the prior findings and orders reveals that at each and every prior hearing at which the court was required to consider reasonable efforts or services the court found that reasonable efforts had not been made or that reasonable services had not been offered or provided. If at any prior hearing the court found that reasonable efforts had been made or that reasonable services had been offered or provided, the court may terminate parental rights.

(2)An order of the court terminating parental rights, ordering adoption under section 366.26, or, in the case of an Indian child, ordering tribal customary adoption under section 366.24 is conclusive and binding on the child, the parent, and all other persons who have been served under the provisions of section 294. The order may not be set aside or modified by the court, except as provided in rules 5.538, 5.540, and 5.542 with regard to orders by a referee.

(3)If the court declares the child free from custody and control of the parents, the court must at the same time order the child referred to a licensed county adoption agency for adoptive placement. A petition for adoption of the child may be filed and heard in the juvenile court but may not be granted until the appellate rights of all parents have been exhausted.

(4)In the case of an Indian child for whom tribal customary adoption has been ordered in accordance with section 366.24, the court may continue the hearing for up to 120 days to permit the tribe to complete the process for tribal customary adoption. In its discretion, the court may grant a further continuance not exceeding 60 days.

(A)No less than 20 days before the date set for the continued hearing, the tribe must file the completed tribal customary adoption order with the court.

(B)The social worker must file an addendum report with the court at least 7 days before the hearing.

(C)If the tribe does not file the tribal customary adoption order within the designated time period, the court must make new findings and orders under section 366.26(b) and select a new permanent plan for the child.

The purpose of termination of parental rights is to free the child for adoption. Therefore, the court must not terminate the rights of only one parent unless that parent is the only surviving parent, or the rights of the other parent have been terminated by a California court of competent jurisdiction or by a court of competent jurisdiction of another state under the statutes of that state, or the other parent has relinquished custody of the child to the county welfare department. The rights of all parents-whether natural, presumed, biological, alleged, or unknown-must be terminated in order to free the child for adoption.